Case Reference: 3261194

Appeal Decision
Inquiry Held on 16-18 March 2021
Site visit made on 19 March 2021
by Harold Stephens BA MPhil Dip TP MRTPI FRSA
an Inspector appointed by the Secretary of State
Decision date: 14 May 2021
Appeal Ref: APP/N1730/W/20/3261194
Former Fleet Police Station, 13 Crookham Road, Fleet GU51 5QQ
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a failure to give notice within the prescribed period of a decision on an
application for planning permission.
• The appeal is made by [APPELLANT] Ltd against Hart District Council.
• The application Ref 19/02659/FUL, is dated 15 November 2019.
• The development proposed is demolition of existing building and redevelopment of the
site to form 31 retirement apartments including communal facilities, retention of
existing access, car parking and landscaping.
Decision
1. The appeal is allowed and planning permission is granted for demolition of
existing building and redevelopment of the site to form 31 retirement
apartments including communal facilities, retention of existing access, car
parking and landscaping at the former Fleet Police Station, 13 Crookham
Road, Fleet GU51 5QQ in accordance with the terms of the application, Ref
19/02659/FUL, dated 15 November 2019, and the plans submitted with it,
subject to the conditions set out in the Schedule attached to this decision.
Procedural Matters
2. The appeal was lodged against the non-determination of the planning
application. The application was reported to the Council’s Planning Committee
on 11 November 2020 to inform the Planning Committee of the submission of
the non-determination planning appeal and to establish what the decision of
the Planning Committee would have been had it determined the application.
The Planning Committee resolved that it would have refused the application
for the following three reasons which are contained in the Planning Statement
of Common Ground (SoCG).1 In summary these are: (i) the proposed
development would not provide an adequate level of affordable housing; (ii)
the proposed development would not achieve a high-quality design or
positively contribute to the overall appearance of the area; and (iii) the
proposed development, either alone or in combination with other plans or
projects, would be likely to have a significant adverse effect on the Special
Protection Area.
3. The application was supported by a number of plans, reports, and technical
information. A full list of the plans on which the appeal is to be determined is
1 Paragraph 2.9
set out at paragraph 2.11 of the Planning SoCG which was agreed by the main
parties. The application was also submitted with supporting statements and
information which is set out at paragraph 2.12 of the Planning SoCG. The
proposal was supported by a Design and Access Statement (DAS), a Planning
Statement, information on Greenfield Runoff Rates, a Transport Statement, an
Ecological Desk Study, a Shadow Habitats Regulation Assessment, a Ground
Investigation Report, an Affordable Housing Viability Statement, a Statement
of Community Involvement, a Thames Basin Heath Statement, a
Sustainability and Energy Statement and a Planning Statement Addendum.
4. I held a Case Management Conference (CMC) on 11 January 2021. At the
CMC the main issues were identified, how the evidence would be dealt with at
the Inquiry and timings. In the weeks following the CMC both main parties
continued discussions on the appeal to ensure that matters of dispute were
clear and that all matters of agreement (non-disputed matters) were
documented in either Statements of Common Ground or in draft Planning
Conditions such that time on these matters was minimised at the Inquiry. It
follows that there are two Statements of Common Ground in this case:
• Planning Statement of Common Ground – 26/01/21
• Viability Statement of Common Ground - 26/01/21.
5. At the Inquiry a Planning Obligation was submitted. The Planning Obligation is
made by an Agreement between the Appellant, HSBC UK Bank Plc and Hart
District Council under s106 of the TCPA 1990. The Planning Obligation secures
the following: (i) an off-site financial contribution in lieu of on-site affordable
housing provision of £500,000; (ii) provision of SANG2 land at Queen
Elizabeth Barracks, Sandy Lane, Church Crookham and provision of a SAMM3
payment of £14,585. The s106 Agreement is signed and dated 10 May 2021
and is a material consideration in this case. A Community Infrastructure Levy
(CIL) Compliance Statement was also submitted in support of the Planning
Obligation. I return to the Planning Obligation later in this decision.
6. In relation to putative RfR1 (affordable housing), it is clear that agreement
has now been reached in relation to an off-site financial contribution towards
affordable housing that is secured through a s106 Agreement. Therefore, it is
agreed that having regard to development viability, the appeal proposal would
provide an adequate level of affordable housing provision. This matter is no
longer in dispute and did not form part of the Council’s or the Appellant’s
evidence.
Main Issues
7. In the light of the above I consider the main issues are:
(i) The effect of the design of the proposed development on the character and
appearance of the area; and
(ii) The effect of the proposed development on the Thames Basin Heaths Special
Protection Area.
2 Suitable Alternative Natural Greenspace
3 Strategic Access Management and Monitoring
Reasons
The Appeal Site
8. The appeal site is an L shaped plot of land of approximately 0.29ha. The site
slopes down from Crookham Road to the back of the site. The site is currently
vacant being formerly a police station. The police station building (now
demolished) was constructed in red brick and was located centrally within the
site. On the south boundary is a single storey garage block. A tarmac surfaced
car park associated with the police station use occupies the north west part of
the site with access gained from Crookham Road. A secondary vehicular
access is located to the south east from St James Road. The police station
building was two storeys in height with a part pitched and part flat roof. An
underground fuel tank is recorded on site.
9. To the south west of the site is Walton Close which incorporates three
residential properties, separating the site from Walton Close is a brick wall. To
the north west is Crookham Road and on the opposite side of the road is
Grace Gardens and Fraynes Croft, both incorporate residential properties. To
the north east is St James Road and on the opposite side are residential
properties which were built in approximately 2010. To the south east is the
access road to the Fleet Bowls Club clubhouse and residential dwellings to the
rear. The properties in the immediate area range from single storey to three
stories in height with the majority being of a brick construction. The site is not
within a conservation area.
Description of Development
10. The description of development of the appeal is:
“Demolition of existing building and redevelopment of the site to form 31
retirement apartments including communal facilities, retention of existing
access, car parking and landscaping.”
11. The proposed apartments would consist of 19 x one-bedroom apartments and
12 x two-bedroom apartments. These would be supported by communal
facilities including a one bedroom guest suite, lobby, residents’ lounge, and
rear garden. The proposal would fall within Use Class C3 (Dwelling Houses).
12. The submitted Planning Statement (para. 2.10) states:
"The developments consist of 1- and 2-bedroom apartments and are sold
by the Applicant with a lease containing an age restriction which ensures
that only people of 60 years or over, or those of 60 years or over with a
spouse or partner of at least 55, can live in the development."
13. The development would have a lodge manager who would be on call during
normal working hours and would have an office. There is no warden living on
site and no specialist medical support would be provided.
14. The scheme would consist of a single three storey building fronting Crookham
Road. The main entrance to the building would be to the west and would also
provide access to a car park for 20 vehicles. Vehicular access would be from
Crookham Road as per the arrangement for the former police station.
Planning Policy
15. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires
that the appeal must be determined in accordance with the development plan
unless material considerations indicate otherwise. The parties are agreed that
the statutory development plan includes the following documents: (i) The
South East Plan (SEP) Saved Policy NRM6; the Hart Local Plan (Replacement)
1996-2006 Saved Policies (HLP06); (iii) the Hart Local Plan (Strategy and
Sites) 2032 (HLP32) and the Fleet Neighbourhood Plan (FNP) 2019. The
parties are agreed that the policies relevant to this appeal are in these
documents and they are listed at paragraphs 3.5-3.8 on page 11 of the
Planning SoCG.
16. The development plan identifies the appeal site to be within the Fleet
Settlement boundary and approximately 50m south west of the Fleet Town
Centre boundary. For the purposes of FNP Policy 10A, the appeal site is
identified as being within the Fleet Town Centre Character Area.
17. It is common ground in this case that the development plan is up-to-date. The
relevant policies are also agreed and are set out in the Planning SoCG. I shall
assess which policies are supportive, neutral or in conflict with the proposed
development and the weighting that can be attached to various policies. Then
I shall assess taking the plan as a whole, whether or not the appeal scheme
complies with the development plan. Then in the light of compliance or breach
whether there are material considerations which would outweigh that
determination in accordance with the development plan.
18. Both parties are agreed that relevant policy and guidance is contained in the
following documents:
• Building for a Healthy Life (2020)
• Government's Technical Housing Standards - Nationally Described
Space Standard (2015)
• Hart, Rushmoor and Surrey Heath Strategic Housing Market
Assessment 2014 -2032 (2016)
• Hart District Council Urban Characterisation and Density Study (2010)
• Hart District Council Parking Provision Interim Guidance (2008)
• Hart District Council Five Year Housing Land Supply from 1 April 2020
(September 2020)
• Thames Basin Heaths Special Protection Area Delivery Framework
(2009)
• Hart Council Community Infrastructure Policy (August 2014)
• Whole Plan and CIL Viability Study December (2016)
19. There is no dispute that the proposal complies with the vision and objectives
of the plan in that it gives priority to the redevelopment of previously
developed land and that it provides more accommodation for the elderly.4
There is also agreement that the proposal complies with the following key
policies. Firstly, it is agreed that Policy SD1, which deals with sustainable
development, is not breached by the proposal. Policy SD1 is the overarching
policy in the plan and must be given significant weight.
4 HLP32 page 32
20. Secondly, there is no dispute that Policy SS1, which sets out the spatial
strategy and the distribution of growth, is supportive of the development. The
appeal scheme is located in the most sustainable settlement in Hart and is on
previously developed land. I note that in meeting the housing requirement of
the District, criteria (b) identifies permitting further development within the
defined settlement boundaries where this proposal is located. Compliance with
Policy SS1 must therefore be given significant weight.
21. Thirdly, both sides accept that Policy H1 (a-c) supports the proposal. The
appeal scheme would provide an appropriate mix of dwelling types and sizes
having regard to the evidence in the SHMA about housing needs and the size,
location and characteristics of the surroundings; it would also provide homes
that are accessible and adaptable and it would provide homes that would be
made for specialist accommodation having regard to the SHMA.5 Collectively
the proposal complies with Policy H1 and should be given significant weight.
22. Fourthly, Policy H2 is met by the s106 contributions. There is an accepted
significant need for further affordable housing in Hart6 and the policy
compliance should be given significant weight. Fifthly, Policy H4 is also
supportive of the proposal seeking the provision of specialist accommodation
for older persons on sites within settlement boundaries.7 Significant weight
should be given to this policy. Sixthly, the parties agree that the proposal
complies with Policy H6 in meeting nationally described internal space
standards. Again, significant weight should be given to this policy compliance.
First Issue - the effect of the design of the proposed development on the
character and appearance of the area
23. The appeal scheme proposes a three storey L shaped building with the long
frontages to Crookham Road (north west) and Walton Close (south west). A
communal amenity garden would be provided to the rear of the building on
the east part of the site and a car park to the south, accessed from Crookham
Road. The main access to the building would be from the access road to the
south west. The proposed building would feature a pitched roof, gables,
dormer windows and balconies. The predominant elevation material would be
red brick, light cream render and brick accents are also proposed. The roof
would consist of grey tiling.
24. The Council maintains that the proposed development would result in a poor
design response through its failure to integrate and interact successfully with
Crookham Road and St James Close; that the proposed elevations lack detail
and quality; and that the scheme fails to respond positively to urban design
policies and guidance. It is argued that the proposal would not meet the
requirements of Policy NBE9 of HLP32, Policy GEN1 of HLP06 or Policy 10 or
10A of the FNP. It is contended that these design policies are highly significant
and sufficient in themselves to justify dismissing the appeal. Reference is
5 Paragraphs 128-131 of HLP32
6 Paragraph 137 of HLP32
7 Paragraph 156 of HLP32
made to the Government’s increasing emphasis on the need for high quality
design and placemaking which is evident from the NPPF, the Planning Practice
Guidance, the National Design Guide and Building for a Healthy Life.
25. There was some discussion at the Inquiry about the status of the site and
whether it is located within Fleet Town Centre. From the documents that are
before me, I consider that the appeal site is not within the Fleet Town Centre
for the purposes of the HLP32.8 However, it is within the Fleet Town Centre
Neighbourhood Area for the purposes of the FNP and to which the Urban
Characterisation and Density Study (UCDS) and Townscape Analysis Map
apply. Although both the HLP32 and the FNP form part of the statutory
development plan any conflict in policy must be resolved in favour of the
policy which is contained in the last document to become part of the
development plan.9
26. Both sides agree that the UCDS is a material consideration and it identifies
the site to be in Area D: Fleet Road of the Fleet Town Centre Neighbourhood
Area. A number of locally listed and positive buildings are identified in the sub
area on the Townscape Analysis Map. The UCDS identifies Area D as sensitive
to change and identifies a number of characteristics that apply. Policy 10A of
the FNP makes clear that proposals will be supported where they have
appropriate regard to the design characteristics for the relevant land use in
that character area.
27. Although the Council opened its case on the basis that the massing and
appearance of the proposed development was in dispute between the parties,
no material evidence was led by the Council on that point. The Council
confirmed that the points of particular concern in relation to the design of the
scheme were the lack of active frontages and local character.
28. As a preliminary point, I note that the site has been vacant for about six years
but nowhere has the Council sought to impose a site specific design solution
through the development plan nor has it set down a list of requirements for
this site or the general area. Instead the Council relies on alleged conflict with
Policies NBE9 of HLP32, GEN1 of HLP06 and Policies 10 and 10A of the FNP all
of which are generic in nature.
29. With regard to Policy NBE9 of HLP32 the proposal is alleged to conflict with
criteria (b) and (g) because of the lack of active elevation. However, there
are 10 criteria in the policy and only two are said to be breached. Therefore,
even on the Council’s case 8 of the criteria are effectively complied with so
that overall, the policy is complied with taking the policy as a whole.
Secondly, neither criteria (b) or (g) expressly mention active frontage. The
Council accepted that neither criteria in the policy mentioned active elevation.
8 Inset Map 10.1
9 Section 38(5) of the PCPA 2004 refers. The HLP32 was the last document to become part of the development
plan being adopted in April 2020
30. The Council argued that the aims of Policy NBE9 (b) and (g) cannot be met
without active elevation. However, I consider the language in HLP32 is clear
where the Council considers active frontages are necessary, such as in Policy
ED5 and in the area in the Fleet Town Centre in Inset Map 10.1. I cannot
accept that criteria (b) and (g) do actually deal with active frontages. Criteria
(b) relates to the contribution of the building to public spaces and also access
routes and public rights of way. It cannot be inferred that active frontages are
implicit in that and the NPPF10 states that policies must be clearly written and
unambiguous. Exactly the same points can be made about criteria (g). This is
all about crime and preventing anti-social behaviour. It cannot be inferred
that active frontages are implicit here.
31. With regard to Policy GEN1 of HLP06, criteria (i), the Council accepted that
this policy is generic in nature and has no express requirement for active
elevation here. Moreover, there are numerous criteria in this policy and only
one is alleged to be breached. With regard to Policies 10 and 10A of the FNP,
I note that this policy was described by the examiner in 2019 as a generic
design policy.11 Furthermore, the Council accepted that the relevant UCDS’s
guidance12 for new developments in Area D of the Fleet Town Centre was
limited to developments being of two or three storeys and that there were
various opportunities for public realm and traffic management opportunities.
32. Overall, it is clear to me that there is no express requirement for active
frontages in any of these policies. The development plan simply does not
require active frontages on the appeal site.
33. Additionally, the importance of active frontages is overstated by the Council.
None of the documents cited in support of the pre-eminence of active
frontages affords active frontages the weight given to them by Dr
Kruczkowski.13 Where the NPPF, the National Design Guide and Building for a
Healthy Life do mention active frontages, they do so as ways of integrating
buildings into their surroundings. This is recognised in the guidance that Dr
Kruczkowski, cited at paragraph 2.3 of the Rebuttal PoE: the purpose of an
active frontage is to add interest, life, and vitality to the public realm. In my
view the proposed design does this, and the proposed development would be
fully occupied on a full time basis by 31 occupants at least who would be
resident and using the high street on a daily basis. There are no requirements
or grading standards in the NPPF or otherwise for appropriate or inappropriate
active frontages and, as I saw on my site visit, the activity afforded by the
other frontages in the area is limited.
34. Turning to the alleged impact of the proposed development, I note that the
proposed building would be set back about 5m from Crookham Road and
about 1m below the level of Crookham Road. The Council’s principal criticism
10 Paragraph 16
11 Mr Moorhouse Appendix 1
12 Appendix 1, page 12
13 Dr Kruczkowski’s POE paragraph 2.53-2.54
with the proposed development is that its principal façade does not face
Crookham Road because the front door does not face Crookham Road,
meaning that the frontage to the building could only ever achieve a “Grade D”
standard for active frontages. I disagree.
35. It is wrong to say the principal elevation in the building would not be on
Crookham Road. The principal elevation is defined by the massing of the
proposed development and the location of the main road, which means that
the development’s principal façade would be the elevation facing Crookham
Road. As Mr Jackson confirmed the building would be easily legible and
understood by anyone coming to the site and there would be no harm in
having the main entrance to the side of the building.
36. The appeal scheme would offer a high degree of social interaction between
residents of the development and those walking by it. Some 39 openings face
Crookham Road over a frontage of 54 metres. The openings on the building
increase the interface of the building with the public realm given that five of
the ground floor flats have doors, leading onto patios, which would be used by
residents. A further six of the first and second floor flats have Juliette
balconies with fully opening doors. The Council’s approach highlights a lack of
understanding of how to design a scheme which works for the provision of
accommodation for older persons. The design which the Council appears to
want would not be architecturally workable given the need for a level access
to the building and level access internally.
37. In addition, the suggestion that the building could be level with Crookham
Road is impractical because of the need for a platform lift and this would
decrease the level of interaction with the public realm, as ground floor
residents would be level with a busy road so less likely to use or sit on the six
patios at the front of the building. Dr Kruczkowski’s evidence in chief was
that “an active frontage is not made active by having doors”. The level of
usage by a front door on Crookham Road would be limited in any event. The
location of the car park at the rear means that even if there were a front door
on the Crookham Road elevation of the building, it would not be regularly
used. This is illustrated by the properties in St James’ Close. In my view there
would be no material harm arising from the design of the appeal scheme.
38. I now turn to the alleged harm to local character. It was very difficult to
discern from the Council’s evidence what the actual current character of the
locality is. There is the guidance in the UCDS’s Area D: Fleet Road of the Fleet
Town Centre Neighbourhood Area and the locally distinctive character of the
site which the Council identified as coming from the Townscape Analysis Map.
However, it is clear that not all of the characteristics that apply to the Area D
character area are relevant to the appeal site.14 Indeed, almost none of the
characteristics of this area can be seen from the site or are relevant to the
immediate surroundings. There is no retail adjacent, there is no Edwardian
14 UCDS Appendix 1 page 10 Area D: Fleet Road
character, there are no locally listed buildings within view, there is no
common building line and there is no view of a 1960’s shopping centre. The
only points of relevance are that buildings are two-three storeys and that
there is a negative building on the proposed site where sensitive development
would be welcomed.
39. In my view the local character is highly varied and different with no dominant
style, typology, massing, building line, footprint, scale, use or material. The
scale and height of the site context is two to three storeys. The site context is
mixed and includes detached houses, terraced houses, semi-detached houses,
bungalows, and large flatted developments as well as commercial properties.
It is obviously wrong to look at character based on a plan alone, which should
actually be determined by the context of the site. The appearance of buildings
and building materials used in the site context is also mixed. Plainly the site is
in a location where the urban transitions into the suburban. In the context of
the site, the scheme proposed by the Appellant offers high quality design,
which is cohesive with Crookham Road and its surroundings. I cannot agree
with the Council that the measured, polite, and benign elevations of this
building would be so materially harmful to the existing character as to justify
refusal on design grounds.
40. Where Dr Kruczkowski did identify buildings, which made ‘positive
contributions’, that is all he did. He did not identify any characteristics which
make them positive, for example in his description of Royal Parade. Dr
Kruczkowski failed to identify any local characteristics from the Townscape
Analysis Map which the proposal does not comply with save for that the
character is about relationships with the street. That is, effectively, a repeat of
the Council’s case on active frontages which I have already dealt with above.
41. The proposed design would enliven the Crookham Road street scene. The
proposed amenity space would be set down and back from the road which
would allow some privacy and separation from traffic but would also allow
some interaction between the public realm and residents. The boundary
treatment is set at a height to allow passing pedestrians visual connection
with residents at the front of the building. The setting down of the building is
key to dealing with the sloping site levels of about 2m across the site, making
the building accessible to all at a single level. The most appropriate location
for practical entry to the building is at the south west elevation as designed,
where it could be seen from both Crookham Road and the car park and can
provide level access to the building.
42. The appeal scheme provides a high quality design. The context analysis within
the DAS has identified this site as a transition site between the more urban
grain development to the north and the suburban development to the south.
The building would be set down into the site, to both create a level access to
all points and reduce the height of the building to neighbouring dwellings. The
proposal has similar eaves heights to St James Close. The roof would be
stepped to break down into elements thereby reducing the overall mass.
Dormers would further visually break up the roof mass. The height, scale and
mass are all appropriate for this site and its context. Gables with limited
articulation are a feature of the immediate context. The DAS covers a detailed
analysis of the materials and features of buildings in the local context. The
proposed design therefore positively responds to all aspects of paragraph 127
of the NPPF and is high quality.
43. Drawing all of these threads together I conclude on the first issue that the
proposed development is a high quality design which would positively
contribute to the overall character and appearance of the area. The proposal
would accord with aforementioned development plan policies NBE9 of HLP 32,
GEN1 of HLP 06 and Policy 10 and 10A of FNP and with other relevant policy
and guidance including that contained in the NPPF.
Second Issue - Effect on Thames Basin Heaths SPA
Assessment of likely significant effects
44. The appeal site is located in proximity to the Thames Basin Heaths Special
Protection Area (TBHSPA). It is within the 5 kms SPA Buffer Zone but outside
of the 400m `inner exclusion’ zone identified within SEP Policy NRM6, HLP32
Policies NBE3 and NBE4 and FNP Policy 17. The TBHSPA is a network of
heathland sites which are designated for their ability to provide a habitat for
the internationally important bird species of woodlark, nightjar, and Dartford
warbler. The area is protected in the UK under the provisions set out in the
Conservation of Habitats and Species Regulations 2017 (as amended) (the
‘Habitats Regulations’). These bird species are particularly subject to
disturbance from walkers, dog walkers and cat predation because they nest
on or near the ground.
45. The conservation objectives for the SPA are to ensure that the integrity of the
site is maintained or restored as appropriate, and to ensure that the site
contributes to achieving the aims of the Habitats Regulations, by maintaining
or restoring the extent and distribution of the habitats of the qualifying
features; the structure and function of the habitats of the qualifying features;
the supporting processes on which the habitats of the qualifying features rely;
the population of each of the qualifying features, and, the distribution of the
qualifying features within the site. I have had regard to these objectives in
undertaking my duties in accordance with the Habitats Regulations.
46. The characteristics of the proposed development coupled with its proximity to
the SPA present an increased risk of disturbance to its qualifying features.
Natural England (NE) has indicated that it believes that within 5km of the
SPA, additional residential development in combination will have significant
effects on the Bourley and Long Valley SSSI, which forms part of the TBHSPA.
Thus, without mitigation any such proposal is contrary to Habitats Regulations
63 and 64. Mitigation measures in the form of SANG and SAMM contributions
are required to be secured to avoid impacts from residents who may recreate
upon the SPA. NE also considers that without appropriate mitigation the
proposed development could have an adverse effect on the integrity of the
Basingstoke Canal SSI. In order to mitigate these impacts and make the
development acceptable foul drainage must be connected to the public sewer.
47. Collectively, SEP Policy NRM6, HLP32 Policies NBE3 and NBE4 and FNP Policy
17 require adequate measures to avoid or mitigate any potential adverse
effects on the SPA. The application proposes 31 net additional dwellings (Class
C3 use) within the 400m – 5km TBHSPA ‘zone of influence’. As such,
adequate measures in accordance with the Habitats Regulations and the
above development plan policies are required. The Habitats Regulations
require the Competent Authority to consider the potential impact that a
development may have on a European Protected Site (TBHSPA).
48. The Thames Basin Heaths Joint Strategic Partnership has agreed a ‘Thames
Basin Heaths Special Protection Area Delivery Framework’15 to enable the
delivery of housing in the vicinity of the TBHSPA without development having
a significant effect on the TBHSPA as a whole. The delivery framework is
based on avoidance measures and the policy indicates that these measures
can take the form of areas of open space (SANG). The delivery framework
also states developments can provide SANG or that Local Authorities collect
developer contributions towards mitigation measures. This includes the
provision of SANG land and joint contributions to the funding of SAMM of the
effects of mitigation measures across the TBHSPA.
49. At the application stage, NE originally objected to the proposed development16
but, following the submission of a Shadow Habitats Regulations Assessment,17
advised that as long as the Applicant was complying with the requirements of
Hart's Avoidance and Mitigation Strategy for the TBHSPA (through a legal
agreement securing SANG and SAMM), NE had no objection on the grounds of
the impact of the development on the TBHSPA.18 No such legal agreement
was in place at the time the appeal was submitted. As a consequence, the
Inspector is now the Competent Authority for the appeal scheme, and it is
necessary for me to undertake an Appropriate Assessment (AA).
Appropriate Assessment
50. This AA is necessary to comply with Regulation 63 (1) of the Conservation of
Habitats and Species Regulations 2017. It is accepted by the parties that the
characteristics of the proposed development coupled with the proximity to the
SPA present a likely significant effect in-combination to its qualifying features.
The parties also agree that an appropriate Avoidance Strategy which involves
the provision of SANG and a financial contribution towards the SPA wide
SAMM project would be necessary and sufficient to address the impacts from
the proposed development.
15 CD3.6
16 Mr Moorhouse’s Appendix 4
17 D 2.7
18 Mr Moorhouse’s Appendix 5
51. Following submission of the appeal, the Appellant has provided a s106
Agreement, with a Deed of Covenant appended, relating to the acquisition of
SANG land from a third party19 at Queen Elizabeth Barracks, Sandy Lane,
Church Crookham (Naishes Wood SANG). The s106 Agreement secures the
appropriate amount of SANG land as mitigation for the appeal scheme and it
also secures a financial contribution to the Council for SAMM. The assumed
contribution for the SANG land is £186,600 plus VAT based on an assumed
0.43 ha of SANG Land and 31 units. The s106 Agreement also secures a
SAMM contribution of £14,585 to be paid by the owner.
52. I consider that the proposed SANG and SAMM mitigation is likely to be
effective as the SANG land was specifically designed to persuade visitors away
from the SPA. It is reasonable to conclude that SANG is effective as mitigation
and dwellings consented within 5kms of the Thames Basin Heaths SPA with
accompanying SANG are not likely to result in an increased number of visitors
to the SPA. I also consider the amount of SANG proposed in this case is more
than adequate to mitigate for the expected contribution of the proposal to the
combined visitor pressure impact on the integrity of the SPA and the SAMM
contributions are appropriate to secure management and maintenance of the
land in perpetuity.
53. The parties are agreed that the Inspector as Competent Authority can and
should in this case find that development proposals would accord with the
Habitats Regulations on the basis that the Appellant has secured access to the
Naishes Wood SANG by entering into a Deed of Covenant with a third party20
as set out in the s106 Agreement and by making the SAMM payment.21 The
Council considers that at 17 March 2021 there exists sufficient capacity at
Naishes Wood SANG to mitigate any harm from the appeal proposals. In this
case I found that the appeal scheme is otherwise acceptable by reference to
other issues and therefore it is appropriate to consult NE accordingly.
54. On 29 March 2021 a consultation with NE was undertaken in accordance with
the Habitats Regulations. The response from NE confirms its opinion that the
proposed SAMM mitigation secured by the s106 Agreement is acceptable. NE
also confirms that the amount of SANG land proposed and secured by the
s106 Agreement and the Deed of Covenant, is acceptable to address the
anticipated effects of the development. This response is consistent with NE’s
earlier consultation response provided for the appeal, in which it is stated that
its objection would be removed if a SANG solution was found. Moreover, the
SANG in question has already been opened to the public and is operational. I
consider this provides absolute certainty that the SANG mitigation would be
secured long before occupation.
55. Having had regard to the views of NE and taking into account that I have
found all other matters to be acceptable I am content that with the necessary
and sufficient measures secured the proposed development would not
adversely affect the integrity of the European Site and its relevant features.
19 Taylor Wimpey Developments Limited
20 Ibid
21 Document 4
56. I am also satisfied on the following matters. Firstly, there is an identified and,
prepared SANG at Naishes Wood where access for mitigation purposes will be
permitted if permission is to be granted by the Inspector. Secondly, there are
no technical impediments to the use of the SANG land. Thirdly, the Council
has signed the s106 Agreement. Fourthly, the Appellant is able and willing to
pay the amount that is required under the SAMM and SANG arrangements.
Finally, there is no evidence to suggest that the capacity which exists at
Naishes Wood, is likely to vanish before the transaction is completed and
therefore the SANG provision would ensure that the proposal would not give
rise to adverse effects to the integrity of the SPA.
57. The Appellant has also confirmed that foul drainage would be connected to the
main sewer and has agreed to a condition to ensure that wastewater capacity
will be provided to accommodate the additional flows from the development.
58. For all of these reasons therefore I am satisfied that the mitigation described
above would be appropriately secured and that it would be sufficient to
prevent harmful effects on the integrity and interest features of the TBHSPA
so there would be no conflict with the Habitats Regulations. Moreover, there
would be no conflict with SEP Policy NRM6, HLP32 Policies NBE3 and NBE4
and FNP Policy 17. On the second issue I conclude there would be no
justification to withhold permission.
Other Matters
59. Both parties accept that the proposed development would not result in a
material loss of amenity to neighbouring residential occupiers and would meet
the requirements of Policy GEN1(ii) of HLP06 and the NPPF paragraph 127(f)
in this regard. The quantum of the proposed parking provision at a ratio of
0.65 is appropriate in this instance and would accord with HLP32 Policy
INF3d) and FNP Policy 19. Matters relating to ecology and surface drainage
can be secured by conditions. There was one objection from a neighbouring
occupier on the grounds of noise and disturbance through construction and
questioning the need for specialised accommodation for older persons. With
regard to noise and disturbance this is a matter that can be dealt with by a
planning condition. I have already dealt with the identified need for
specialised accommodation for older persons earlier in this decision.
Planning Obligation
60. At the Inquiry, a s106 Planning Obligation was submitted by way of
Agreement. The Planning Obligation is made by an Agreement between the
Appellant, HSBC Bank PLC, and Hart District Council. A CIL Compliance
Statement was submitted with the Planning Obligation. I have considered the
Planning Obligation in the light of the CIL Regulations 2010, as amended, the
advice in the NPPF and the PPG.
61. Local Planning Authorities should only consider whether otherwise
unacceptable development could be made acceptable through the use of
conditions or planning obligations.22 Regulation 122 of the CIL Regulations, as
amended by the 2011 and 2019 Regulations, and paragraph 56 of the NPPF
22 NPPF paragraph 54
make clear that Planning Obligations should only be sought where they meet
all of the following three tests: (i) necessary to make the development
acceptable in planning terms; (ii) directly related to the development; and (iii)
fairly and reasonably related in scale and kind to the development.
62. The s106 Agreement secures a financial contribution of £500,000 to be paid
by the owners towards the provision of off-site affordable housing. Securing a
financial contribution towards off-site affordable housing is necessary to meet
the requirements of HLP32 Policy H2. It is directly related to the development
and fairly and reasonably related in scale and kind. The financial contribution
has been calculated based on the application site, development proposed and
viability. The s106 Agreement requires the total affordable housing
contribution to be used towards the provision of off-site affordable housing.
63. The s106 Agreement secures a SAMM contribution of £14,585 to be paid by
the owners. The owner also confirms that the requisite amount of SANG on
the SANG land has been secured by entering into a SANG Agreement. SEP
Saved Policy NRM6, HLP32 Policies NBE3 and NBE4 and FNP Policy 17 require
adequate measures to avoid or mitigate any potential adverse effects on the
TBHSPA. The Conservation of Habitats and Species Regulations 2017 (as
amended) require the ‘Competent Authority’ to consider the potential impact
that a development may have on the TBHSPA. Mitigation of the likely
significant effect of the development on the TBHSPA is therefore necessary
and directly related to the development of 31 Class C3 residential units.
64. The SAMM contribution is fairly and reasonably related in scale and kind to the
development. It is based on the tariffs published by NE and agreed by the
Hart District Council Cabinet on 01.10.2020 relating to dwelling size and
occupancy. The Appellant has secured SANG from a third party and the
associated SANG Agreement is appended to the s106 Agreement. The
assumed contribution for the SANG land is £186,600 plus VAT. The SANG is
fairly and reasonably related in scale and kind to the development. It secures
an area of SANG (0.43 hectares) based on occupancy rates of the scheme.
65. In my view, all of the obligations in the Planning Obligation are necessary to
make the development acceptable in planning terms; directly related to the
development; and fairly and reasonably related in scale and kind to the
development. Therefore, they all meet the tests within Regulation 122 of the
CIL Regulations and should be taken into account in the decision.
Planning Balance
66. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires
that applications for planning permission be determined in accordance with
the development plan unless material planning considerations indicate
otherwise. I have identified the relevant policies in this case which are listed
at paragraphs 3.5-3.8 of the Planning SoCG. There is no dispute between the
parties that the development plan is up-to-date.
67. In all the circumstances of this case I find there is no conflict with any of the
development plan policies. I conclude that the appeal proposal accords with
the development plan when read as a whole. Paragraph 11c of the NPPF
provides that proposals which accord with an up-to-date development plan
should be approved without delay. There is clear evidence before me with
regard to the suitability of the site. All the material considerations weigh in
favour of the grant of permission.
68. The appeal site is located within the Fleet Settlement boundary. There is no
dispute that the proposal complies with the vison and objectives of the plan in
that it gives priority to the redevelopment of previously developed land and
that it promotes more accommodation for the elderly. It is agreed that the
proposal complies with 6 of the key policies in the development plan: HLP32:
Policy SD1, Policy SS1, Policy H1 (a-c), Policy H2, Policy H4 and Policy H6. In
my view, compliance with these policies can be given very significant weight.
The proposal accords with other relevant development plan policies which can
be given additional weight. The only conflict which the Council identified with
the development plan policies is in respect of design and in particular HLP32:
Policy NBE9, HLP06: GEN1 and FNP: Policy 10 and 10A. I have concluded that
there would be no breach of any of these policies. The proposed development
is a high quality design and accords with the design expectations of the
development plan and paragraph 130 of the NPPF which makes clear that
design should not be a reason for rejecting the development. There would be
no harm arising from the Council’s criticism about the frontage of the
proposed development or the alleged harm to local character.
69. Moreover, there would be a number of benefits of the appeal scheme which
were put forward by the Appellant. These benefits were not undermined to
any degree during the Inquiry. I deal with each of these below explaining the
weight that I attribute to each shown in the brackets.
70. The following benefits would arise: (i) much needed housing for older people.
The Council suggests that the weight to this benefit should be tempered
because the residents of the scheme would not be restricted to being aged 85
or over. However, given the needs identified in the SHMA23 and the average
age of residents of the Appellant’s development being 79-80, the scheme
meets the needs of the Council and significant weight should be given to this
benefit. (ii) the development is of previously developed land (substantial
weight); (iii) the development would be in a sustainable location (substantial
weight); (iv) the development would make optimum use of the site (moderate
weight); (v) the development would provide 31 market dwellings and is a
clear benefit (substantial weight); (vi) the provision of the Appellant’s
payment of £500,000 to the delivery of affordable housing would be a
significant benefit (substantial weight); (vii) there is a benefit releasing
under-occupied housing stock24 (substantial weight); (viii) the site would
provide economic benefits by generating jobs, in the construction and
operational phases of the development and by residents spending locally25
(substantial weight); (ix) there would be social benefits in specialised age
friendly housing26 (substantial weight); (x) the environmental benefits of the
scheme are a clear benefit (moderate weight). Cumulatively, these 10
benefits weigh heavily in favour of the appeal scheme especially given the
critical need for housing for older people as identified at national level in the
NPPF and NPPG and at local level in HLP32.
23 Figures 14.8 and 14.10 page 212
24 NPPF paragraph 118(d) and paragraph 131 of HLP32
25 NPPF paragraph 80
26 Appeal Decision APP/G5180/W/16/3155059 POE Mr Shellum Appendix 4 paragraph 25
71. Therefore, even if I had reached a contrary conclusion in terms of this appeal
and found that there was a conflict with the development plan, any harm
which might be identified as arising from the appeal proposal comes nowhere
near significantly and demonstrably outweighing the many and varied benefits
of the appeal proposal. There is no reason to withhold planning permission in
this case and I conclude that the appeal should be allowed.
Planning Conditions
72. A list of suggested conditions was submitted by the Council at the end of the
Inquiry (Doc3). I have considered these draft conditions in the light of the
advice in paragraphs 54 and 55 of the NPPF and the Government’s PPG on the
Use of Planning Conditions. The Appellant has agreed to all of the suggested
conditions except for Condition 13 which relates to Car Park Management. The
Appellant has also agreed in writing to Pre-commencement Condition 3.
73. Condition 1 is the standard timescale condition. Condition 2 is necessary to
ensure that the development is carried out in accordance with the approved
plans. Condition 3 is required to protect the amenity of nearby residents.
Condition 4 is necessary to ensure appropriate surface water drainage
provision. Condition 5 is necessary to ensure safe living conditions for future
residents. Condition 6 and Condition 7 are required to ensure that the
external appearance of the building is satisfactory. Condition 8 is necessary to
ensure that adequate refuse storage is provided. Condition 9 is required to
reduce the emission of greenhouse gases.
74. Condition 10 is necessary to deliver a net gain in biodiversity. Condition 11
and Condition 12 are required to prevent on-site and off-site flood risk from
increasing from the proposed drainage system. Suggested Condition 13 on
Car Park Management is not agreed. In my view Condition 13 is unnecessary
and unenforceable. It would also introduce no flexibility in the use of the
parking spaces for the development which is unsustainable and counter
intuitive to the reason the Council has given for the condition. I have deleted
this suggested condition.
75. Condition 14 is required to ensure that the development is carried out in
accordance with the application and delivers age restricted housing. Condition
15 is required to ensure that the external appearance of the building is
satisfactory. Condition 16 is necessary to ensure that the development is
provided with adequate parking to prevent the likelihood of on-street car
parking. Condition 17 is necessary to ensure that all new homes within the
development meet the water efficiency standard of 110 litres/person/day.
Condition 18 is required to protect the amenity of nearby residents.
Conclusion
76. Having considered these and all other matters raised I find nothing of
sufficient materiality to lead me to a different conclusion. The appeal is
therefore allowed subject to the conditions set out in the attached Schedule.
Harold Stephens
INSPECTOR
SCHEDULE OF PLANNING CONDITIONS (1-17)
Standard Conditions
1) The development hereby permitted shall be begun before the expiration of
three years from the date of this permission.
Approved Drawings
2) The development hereby approved shall be carried out in accordance with the
following plans:
Location Plan 10103FL PA00
Proposed Site Plan 10103FL PA01 Rev A
Proposed Ground Floor Plan 10103FL PA02
Proposed First Floor Plan 10103FL PA03
Proposed Second Floor Plan 10103FL PA04
Proposed Roof Plan 10103FL PA05 Rev A
Proposed Elevation A - Crookham Rd Elevation 10103FL PA06
Proposed Elevation B - Walton Cl 10103FL PA07
Proposed Elevation C - St James Rd 10103FL PA08
Proposed Elevation D - St James Cl 10103FL PA09
Indicative PV Layout C526-Fleet-Mech
Soft Landscape Strategy 12773_TG_P01 Rev B
Preliminary Drainage Layout PDL-101 Rev A
Proposed Lighting Plan 10103FL- SK001
Parking Swept Path Analysis ATR-101 Rev A
Pre-commencement Conditions
Demolition and Construction Management Plan
3) No development shall commence until a demolition and construction
management plan has been submitted to, and approved in writing by, the
Local Planning Authority. The Plan shall include details of:
1. A programme of demolition and construction works;
2. Methods and phasing for demolition and construction works;
3. Locations of temporary site buildings, compounds, construction material
and plant storage areas;
4. Parking of vehicles of site operatives and visitors;
5. Loading and unloading of plant and materials;
6. Demolition and construction traffic management;
7. Wheel washing facilities;
8. Measures to control the emission of dust and dirt during construction; and
9. A scheme for recycling/disposing of waste resulting from demolition and
construction works.
The development shall take place in accordance with the approved demolition
and construction management plan.
Detailed Surface Water Drainage Strategy
4) Excluding demolition, no development shall take place until a detailed surface
water drainage strategy based on the principles within drawing no.
Preliminary Drainage Layout PDL-101 Rev A has been submitted to, and
approved in writing by, the Local Planning Authority. The strategy shall
include:
1. A technical summary highlighting any changes to the design from that
within the approved preliminary drainage layout;
2. Detailed drainage layout drawings at an identified scale indicating
catchment areas, referenced drainage features, manhole cover and invert
levels and pipe diameters, lengths and gradients;
3. Detailed hydraulic calculations for all rainfall events, including those listed
below. The hydraulic calculations should take into account the connectivity
of the entire drainage features including discharge location. The results
should include design and simulation criteria, network design and results
tables, manholes schedules tables and summary of critical results by
maximum level during the 1 in 1, 1 in 30, 1 in 100 (plus an allowance for
climate change) rainfall events. The drainage features should have the
same reference as the submitted drainage layout;
4. Evidence that urban creep has been considered in the application and that
a 10% increase in impermeable area has been used in calculations to
account for this.
5. Exceedance plans demonstrating the flow paths and areas of ponding in the
event of blockages or storms exceeding design criteria.
The development shall take place and retained in accordance with the
approved detailed surface water drainage strategy.
Contamination Strategy
5) Excluding demolition, no development shall take place until a detailed
decontamination strategy in relation to the underground fuel tank on the site
has been submitted to, and approved in writing by, the Local Planning
Authority. The development shall take place in accordance with the approved
detailed decontamination strategy.
Pre-above Ground Works Conditions
Materials
6) No above ground construction shall take place until details and samples of all
external surfaces have been submitted to and approved in writing by the Local
Planning Authority. The development shall be carried out in accordance with
the approved details.
Hard Landscaping
7) No above ground works shall take place until full details of hard landscaping
have been submitted to, and approved in writing by, the Local Planning
Authority.
Hard landscaping details shall include, as appropriate, proposed finished levels
and/or contours, means of enclosure, hard surfacing materials, and lighting
features. The approved hard landscaping details shall be implemented prior to
occupation of any of the dwellings hereby permitted and retained thereafter.
Refuse Storage and Management
8) No above ground works shall take place until full details of refuse storage and
management have been submitted to, and approved in writing, by the Local
Planning Authority. Refuse details shall include bin store locations, design
details, provision for 4 x 1,100 litre bins for waste and recycling and route(s)
to and from the properties for collections. The development shall take place in
accordance with the approved refuse storage and management details and
retained thereafter.
Photovoltaic Panels
9) No above ground works shall take place until full details of the proposed
photovoltaic panels have been submitted to, and approved in writing, by the
Local Planning Authority. The development shall take place in accordance with
the approved photovoltaic panel details and retained thereafter.
Ecology (Swift Bricks)
10) No above ground works shall take place until details of the quantity and
location of swift bricks has been submitted to, and approved in writing by, the
Local Planning Authority. The development shall take place in accordance with
the approved swift brick details and retained thereafter.
Pre-occupation Conditions
Surface Water Drainage System Maintenance
11) No dwellings shall be occupied until details for the maintenance of the surface
water drainage system has been submitted to, and approved in writing by,
the Local Planning Authority. The details shall include:
1. Maintenance schedules for each drainage feature type and ownership; and
2. Details of protection measures.
The development shall take place in accordance with the approved surface
water drainage system maintenance details and retained thereafter.
Wastewater
12) No dwellings shall be occupied until one of the following has been submitted
to, and approved in writing by, the Local Planning Authority:
1. Confirmation that wastewater capacity exists off site to serve the
development; or
2. A housing and infrastructure phasing plan agreed with Thames Water; or
3. All wastewater network upgrades required to accommodate the additional
flows from the development have been completed.
The development shall take place in accordance with the approved details and
retained thereafter.
Compliance Conditions
Age Restriction
13) The age restricted dwellings hereby permitted shall be occupied only by:
1. Persons of 60 years or over.
2. Persons of 55 years or over living as part of a single household who is a
spouse or partner of a persons of 60 years or over.
Soft Landscaping
14) Soft landscape shall take place in accordance with drawing no. Soft Landscape
Strategy 12773_TG_P01 Rev B. Any such vegetation removed without the
Local Planning Authority’s consent, or which die or become, in the Authority's
opinion, seriously damaged or otherwise defective during a period of five
years following occupation shall be replaced and/or shall receive remedial
action as required by the authority. Such works shall be implemented as soon
as is reasonably practicable and, in any case, replacement planting shall be
implemented by not later than the end of the following planting season, with
planting of such size and species and in such number and positions as may be
agreed with the Authority in writing.
Parking Provision and Retention
15) The development shall not be occupied until the approved parking for mobility
scooters, cycles and vehicles has been provided in accordance with drawing
no. Proposed Site Plan 10103FL PA01 Rev A. The parking shall be maintained
at all times to allow them to be used as such.
Sustainable Water Use
16) All new homes within the development must meet the water efficiency
standard of 110 litres/person/day and retained thereafter.
Construction Hours
17) No development, working on the site or delivery of materials shall take place
at the site except between 0730 hours to 1800 hours weekdays or 0800 to
1300 hours Saturdays. No development, working on the site or delivery of
materials shall take place on Sundays, Bank Holidays or Public Holidays.
APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY:
Ms Saira Kabir Sheikh QC Instructed by Hart DC
She called:
Dr. Stefan Kruczkowski BA (Hons) Director, Urban Design Doctor Ltd
DipTP, PhD, RPUD, FHEA
Mr Rob Moorhouse BSc, MSc, MRTPI Principal Planning Officer, Hart DC
FOR THE APPELLANT:
Mr Sasha White QC Both instructed by Stuart Goodwill,
Ms Evie Barden of Counsel Planning Issues Ltd
They called
Robert Jackson BArch, MArch, RIBA Design Director, Planning Issues Ltd
Matthew Shellum BA (Hons), Dip TP Head of Appeals, Planning Issues Ltd
DOCUMENTS SUBMITTED AT THE INQUIRY:
1. Opening Statement on behalf of the Appellant
2. Opening Statement on behalf of the Council
3. Draft Planning Conditions as at 17.03.2021 submitted by the Council
4. Executed Section 106 Planning Obligation dated 10 May 2021
5. Hart DC Community Infrastructure Levy Compliance Statement
6. Appellant’s note confirming acceptance of Pre-commencement Condition 3
submitted by Mr Shellum
7. Closing submissions on behalf of the Council
8. Closing submissions on behalf of the Appellant